ADJUDICATION OFFICER DECISION

Adjudication Reference: ADJ-00034092

Parties:

	Complainant	Respondent
Parties	Paul McDonnell	Intensive Community Programmes Liquidated

Representatives

John Healy KIRBY HEALY CHARTERED ACCOUNTANTS

Complaint(s):

Act	Complaint/Dispute Reference No.	Date of Receipt
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-001	24/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 6 of the Payment of Wages Act, 1991	CA-00038913-002	24/07/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-003	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-004	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-005	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-006	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00038913-007	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-008	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-009	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-010	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-011	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-012	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-013	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 27 of the Organisation of Working Time Act, 1997	CA-00038913-014	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00038913-015	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00038913-016	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00038913-017	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00038913-018	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 45A of the Industrial Relations Act, 1946	CA-00038913-019	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997	CA-00038913-020	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 18A of the Organisation of Working Time Act, 1997	CA-00038913-021	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038913-022	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00038913-023	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Regulation 18 of the European Communities (Road Transport)(Organisation of Working Time of Persons Performing Mobile Road Transport Activities) Regulations 2012 - S.I. No. 36/2012	CA-00038913-024	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under Section 23 of the Industrial Relations (Amendment) Act, 2015	CA-00038913-025	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038913-026	15/11/2020
Complaint seeking adjudication by the Workplace Relations Commission under section 7 of the Terms of Employment (Information) Act, 1994	CA-00038913-029	24/07/2020

Date of Adjudication Hearing: 23/02/2022

Workplace Relations Commission Adjudication Officer: Penelope McGrath

Procedure:

In accordance with Section 41(4) of the Workplace Relations Act, 2015 and following the presentation by an employee of a complaint of a contravention by an employer of an Act contained in Schedule 5 of the Workplace Relations Act of 2015 or such other Act as might be referred to in the 2015 Act, made to the Director General and following a referral by the said Director General of this matter to the Adjudication services, I can confirm that I have fulfilled my obligation to make all relevant inquiries into the complaint or dispute. I have additionally and where appropriate heard the oral evidence of the parties and their witnesses and have taken account of the evidence tendered in the course of the hearing as well as any written submissions disclosed in advance of the hearing.

The Complainant herein has referred twenty nine complaints concerning alleged contraventions of Employment legislation including (but not limited to) the Payment of Wages Act 1991, the Organisation of Working Time Act, 1997 and the Terms of Employment Information Act 1994.

Background:

The Complainant presented two sets of Complaints to the WRC after the termination of his employment.

This matter was heard by way of remote hearing pursuant to the Civil Law and Criminal Law (miscellaneous Provisions) Act 2020 and SI 359/2020 which said instrument designates the Workplace Relations Commission as a body empowered to hold remote hearings pursuant to Section 31 of the Principal Act. The said remote hearing was set up and hosted by an appointed member of the WRC administrative staff. I am satisfied that no party was prejudiced by having this hearing conducted remotely. I am also satisfied that I was in a position to fully exercise my functions and I made all relevant inquiries in the usual way.

In response to the Supreme Court decision in the constitutional case of Zalewski -v- An Adjudication Officer and the Workplace Relations Commission and Ireland and the Attorney General [2021 ]IESC 24 (delivered on the 6th of April 2021) I can confirm that the within hearing was open to the public so as to better demonstrate transparency in the administration of Justice. I have additionally informed the parties that pursuant to the Workplace Relations (Miscellaneous Provisions) Act, 2021 coming into effecton the 29th of July 2021 and in the event that there is a serious and direct conflict in evidence between the parties to a complaint then an oath or affirmation may be required to be administered to any person giving evidence before me. I confirm that I have administered the said Oath/Affirmation as appropriate. It is noted that the giving of false statement or evidence is an offence.

Summary of Complainant’s Case:

The Complainant had worked with the Respondent company as a project Manager since 2016. He described a chaotic workplace where salaries were paid on an ad hoc basis and usually shy of the amount due and owing. The Complainant described being left without financial resources on a monthly basis. This left standing orders and direct debits unpaid, giving rise to penalty charges. The experience was deeply frustrating for the Complainant who was afterwards advised that the Workplace Relations Commission was a body to which he could bring complaints

Summary of Respondent’s Case:

A Mr. H came to the hearing as the Official Liquidator of the Respondent company. He flagged the fact that this company was ordered by the High Court to be would up. This happened on foot of the Liquidator bringing the appropriate application to the Court and the final order was made on the 11th of September 2020. Mr. H had gone into the company on the 20th of August and had made every effort to ensure that employees were compensated for monies due and owing under legislation and in accordance with their employment rights.

Findings and Conclusions:

I have carefully considered the evidence adduced. The chronology of events is important here. The Complainant came to be employed in March of 2016. His salary was due to be paid at the end of every month. The salary, he said, was invariably less than what was due and owing sometimes by up to 40% of a deduction. The Complainant said there was absolutely no regard for the Organisation of working Time Act and almost every directive contained in that Act was not adhered to, Annual Leave, Public Holidays, rest breaks, maximum allowable hours etc. were all ignored by this employer.

The Complainant gave a moving account of how difficult it was to work in this way. He was constantly worried about money and continuously in arrears and behind in payments. He relied on others to see him through.

There is common case between the two witnesses that the Liquidator came to be appointed into the Respondent premises on about the 20th of August 2019. Mr. H said he oversaw a period of winddown so that end users might be safely re-distributed to appropriate facilities. Mr. H worked with all the onsite employees to ensure that their Statutory entitlements were addressed. In this regard, employees were paid Redundancy through the Redundancy Fund and applications were made to the Insolvency fund to make sure that other monies due and owing would be paid.

The Complainant and Mr.H agree that the Complainant received his appropriate Minimum Notice, his correct Holiday pay and his arrears of wages through the Insolvency fund. He also received his Statutory Redundancy as previously stated, and the redundancy took place on the 28th of August 2019.

I accept that the Complainant was very upset about how he had been treated in the workplace for the four years prior to the termination of the employment. I also accept that the Complainant did not fully understand the role which the WRC might perform in allowing aggrieved Employees seek redress for contraventions of their employment rights.

It is in these circumstances that the Complainant only came to lodge a workplace relations Complaint form with the WRC on the 24th of July 2020 – that is to say - some 11 months after the termination of his employment.

Thereafter, the Complainant lodged another two more sets of complaints on the 15th of November 2020 (fifteen months after the end of the employment). As a matter of law, I have no jurisdiction to entertain, hear or adjudicate on the complaints that were lodged with the WRC beyond twelve months from the date of the contravention to which the complaint relates. Given the employment ended on the 28th of August 2019, it stands to reason that a claim brought in November 2020 cannot include any period of employment during which an employment right was contravened. I have no jurisdiction to deal with all complaints presented in November 2020. The Complainant was aware of this fact as the WRC had made this fact known to him.

Regarding the first two complaints made on the 24th of July 2020, I might have heard these two complaints had the failure to present these complaints within the first 6 months of their having arisen been due to reasonable cause. I am satisfied that the Complainant did not establish a reasonable cause in this instance, and I must allow that not understanding or not knowing about the avenues open to him does not amount to reasonable cause. I should also state that the Liquidator confirmed that many of the Complainant’s colleagues successfully brought claims before the WRC in the timeframe allowed. I am also satisfied that any claims that the Complainant had in July of 2019 were in fact dealt with by the Liquidator and therefore his claims for the short period of one month had already been disposed of.

I know the Complainant was disappointed not to get an opportunity to have all 29 complaints heard in full. He continues to be vexed with his previous employer and there may well be some comfort in this regard in due course as the Liquidator has indicated that the process is continuing, and the behaviour of Company Directors is being scrutinised.

Decision:

Section 41 of the Workplace Relations Act 2015 requires that I make a decision in relation to the complaints in accordance with the relevant redress provisions under Schedule 6 of that Act.